OON JULY 26, 2017, Alex Wubbels, a nurse in the burn unit at the University of Utah in Salt Lake City, was arrested in an incident hat has since been viewed widely on video captured from po- lice body cameras. She refused to let a police phlebotomist draw blood from a patient in a coma—one of the parties involved in a fatal automobile crash. Besides being difficult to watch, this incident demonstrated the lack of understanding of two laws: one Utah state law and one of the tenets of the HIPAA Privacy Rule called “preemption.” The Facts of the Case A suspect in a high speed chase crashed his car head-on into a semi-truck, causing a fire. The suspect died at the scene and paramedics brought the truck driver to the University of Utah burn
unit. He was unconscious when the police officers arrived and
requested a blood sample. The truck driver was not a suspect. The
police detective, Jeff Payne, wanted to establish that the victim
was not driving under the influence, as a protective measure.

He demanded that burn unit staff allow him to draw the blood.
Wubbels, the staff nurse, refused, citing hospital policy that required a warrant, court order, or patient consent. Payne at that point
stated his supervisor, Lt. James Tracy, ordered him to arrest Wubbels if she didn’t comply with his request. When she continued to
refuse, Payne placed Wubbels under arrest, forcing her out the door
and putting handcuffs on her. During the encounter a University of
Utah police officer stood by and did not step in or assist Wubbels.¹

A review of the applicable laws of this case must examine both
state and federal regulations. The relevant laws (state, federal,
and even case law) in this case are:

1. Utah Code, 41-6a-520: A person operating a motor vehiclehas given implied consent to tests of their blood or breathin order to determine if that person is operating under theinfluence of alcohol or any drug.²

2. The United States Supreme Court ruled in June 2016 that
implied consent laws for blood alcohol testing were lawful
only when the penalty for refusing is a civil penalty and not
a criminal penalty.³

3. The HIPAA Privacy Rule only allows information to be released to law enforcement when:

a. It is required by law (mandatory reporting)
b. There is a valid court order or warrant
c. The patient consents ( 42 CFR 164.512(a)(c)(e)(f))

4. Privacy Pre-emption Rule: When a state and a federal law are
in conflict, the HIPAA Privacy Rule states that whichever law
gives the patient more protection preempts any other law.

Payne believed that the Utah law allowed him to do the blood
draw. In fact, it is reported that he said “We have implied con-
sent.”⁴He might have thought the Supreme Court reinforced
this opinion the year before.

Utah Law

Utah allows testing when the officer believes the person was in
violation of laws regarding driving under the influence. Specifically, the law states in 41-6a-520 ( 1)(b): “a test or tests authorized
under this Subsection ( 1) must be administered at the direction of
a peace officer having grounds to believe that person to have been
operating or in actual physical control of a motor vehicle while in
violation of any provision under Subsections ( 1)(a)(i) through (iii).”
In this case, Payne explicitly did not believe this was the case
because in his report he stated he wanted to show the patient
was not under the influence of drugs or alcohol. Therefore, the
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